Chan Sek Keong J:

[1] This was an appeal by the plaintiff against the decision of the registrar giving unconditional leave to the defendant to defend the plaintiff's claim which was founded on a friendly loan. After hearing submissions from counsel for both parties, I came to the conclusion that this was a clear case where the defendant had no defence. But because the registrar had misunderstood the law in relation to a claim of a type that frequently arose in the subordinate court, I said I would give my reasons for allowing the appeal.

[2] The following facts were admitted by the defendant. The plaintiff was a housewife. The defendant was a business-woman. They were old friends, their friendship going back to 1965. The have been living in the same block of flats since mid-1982. The plaintiff gave loans to the defendant at the latter's request from time to time and against her post-dated cheques because of their friendship. The plaintiff did not ask for or stipulate any amount of interest, but the defendant paid interest on these loans at her own initiative at rates decided by her. The rates of interest varied from time to time and from loan to loan. The plaintiff accepted the interest.

[3] That was the general background of the loans. In this action, the plaintiff sued the defendant for the sum of $9,600 being the balance of a loan of $10,000 given to her. The loan and the amount unpaid were acknowledged in a letter signed by the defendant dated 23 April 1990. She had also given a post-dated cheque for $10,000 which was dishonoured when the plaintiff presented it for payment. After the defendant defaulted on the loan, she offered to pay $100 interest but the plaintiff rejected the offer.

[4] The defence was that the loan of $10,000 was rolled over from and made up of a series of five or six loans given on a number of occasions over a period of two or three years, and that it included both principal and interest. In essence, the defence was that the plaintiff had given a series of loans to the defendant for which she had received interest.

[5] Defence counsel contended before the registrar that the defendant's version of the facts gave rise to a presumption that the plaintiff was a moneylender and that accordingly she was entitled to unconditional leave to defend. Counsel relied on s 3 of the Moneylenders Act (Cap 188, 1985 Ed) ('the Act') which reads:

Save as excepted in paras (a) to (e) of the definition of 'moneylender' in s 2, any person who lends a sum of money in consideration of a larger sum being repaid shall be presumed until the contrary is proved to be a moneylender.

[6] The registrar accepted the argument. He held that the statutory presumption applied. He also decided that whether a person was a moneylender was a question of fact which had to be tried in each case, citing Newton v. Pyke [1908] 25 TLR 127. He distinguished the two authorities cited to him by counsel for the plaintiff, viz Esmail Sahib v. Noordin; [1951] MLJ 98 and Litchfield v. Dreyfus [1906] KB 584 on the ground that they were trial cases and not O 14 applications. Accordingly, he gave unconditional leave to defend.

[7] The law as stated in Litchfield v. Dreyfus [1906] KB 584 was not challenged by counsel for the defendant. In that case, Farwell J (at p 589), in relation to the Moneylenders Act 1900, said:

But not every man who lends money at interest carries on the business of moneylending. Speaking generally, a man who carries on a moneylending business is one who is ready and willing to lend to all and sundry, provided that they are from his point of view eligible. I do not of course mean that a moneylender can evade the Act by limiting his clientele to those whom he chooses to designate as 'friends' or otherwise: it is a question of fact in each case.

[8] The above statement was accepted by Walton J in Newton v. Pyke [1908] 25 TLR 127 who went on to say that 'it was not enough merely to show that a man had on several occasions lent money at rem